TG, R (on the application of) v London Borough of Lambeth

Accommodation ostensibly provided to a homeless 16 or 17-year-old under housing legislation may count as accommodation under section 20 of the Children Act 1989 where the acts of an officer representing children’s services are properly attributable to that department. Statutory guidance issued under section 7 of the Local Authority Social Services Act 1970 must be followed unless the authority has made a considered decision that good reason exists to depart from it.

A breach of statutory duties to provide support to a vulnerable young person does not, without more, violate article 8. The claimant must show consequences sufficiently concrete and serious to engage respect for private or family life. Speculative, slight or nebulous effects are insufficient.

The appellant was accommodated by Lambeth’s housing department for about seven months when aged 16 and 17, ostensibly under section 188 of the Housing Act 1996. A qualified social worker in Lambeth’s Youth Offending Service had concluded that he was a child in need, but neither that service nor the housing department referred him to children’s services. Lambeth accepted that accommodation should probably have been provided under section 20 of the Children Act 1989.

McCombe J dismissed a judicial review challenge to Lambeth’s later decision that the appellant was not a former relevant child. The appeal asked whether the accommodation should be treated as provided under section 20, making him a looked-after child and ultimately a former relevant child. It also raised whether alleged failures to provide the resulting statutory support arguably violated article 8 and justified permitting a damages claim under the Human Rights Act 1998.

1. Appeal allowed. Lambeth’s decision that the appellant was not a former relevant child was quashed. The Court declared that he had held that status for section 23C of the Children Act 1989 from his eighteenth birthday.
2. Guidance issued under section 7 of the Local Authority Social Services Act 1970 is not merely good practice. An authority must follow it unless it makes a considered decision that good reason exists to depart. Both the Youth Offending Service and housing department unlawfully failed to refer the appellant to children’s services.
3. The appellant met the section 20 criteria. The widest scope applied to the inability of the person caring for him to provide suitable accommodation or care. Alternatively, the assessment that he was a child in need and desperately required housing satisfied section 20(3). Had the statutory alternatives been explained, he would have requested section 20 accommodation.
4. The dividing line stated in R (M) v Hammersmith and Fulham LBC [2008] UKHL 14 remained correct, but this case fell on the favourable side of it. The social worker’s place in the Youth Offending Service fulfilled a statutory requirement for a person experienced in children’s social work. She acted as the eyes and ears of children’s services and produced a report apt only for that department. Her acts were therefore imputable to children’s services. The accommodation was treated as provided under section 20, so the appellant had been looked after and acquired the successive statutory statuses.
5. Permission to pursue damages under section 8 of the Human Rights Act 1998 was refused. Article 8 can impose positive obligations and can exceptionally require welfare support, especially where children and family life are at stake. Here, however, the appellant had accommodation and subsistence, alleged no article 3 treatment, and supplied no concrete material showing the likely effect of lawful support. Any consequences were too nebulous, speculative and slight to establish an arguable article 8 violation.

Lord Justice Toulson and the Master of the Rolls agreed with Lord Justice Wilson.

• Court of Appeal (Civil Division): Allowed the appeal, set aside the dismissal of the judicial review claim, quashed Lambeth’s decision and declared that the appellant had been a former relevant child from his eighteenth birthday. Permission to pursue the damages claim was refused: [2011] EWCA Civ 526.
• High Court, Administrative Court: McCombe J dismissed the judicial review claim challenging Lambeth’s decision that the appellant was not a former relevant child. No neutral citation is stated in the judgment.